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JOHNSON v. WASHINGTON METRO. AREA TRANSIT AUTH.

November 15, 1994

ELEANOR T. JOHNSON, et al., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 I.

 On March 20, 1986, Devora Johnson leaped from the train platform at the lower level of the Metro Center subway station. An oncoming subway train struck and killed her. Plaintiffs are Devora's parents. It is undisputed that decedent "assumed the risk and was contributorily negligent by jumping into the path of an oncoming train." Johnson v. Washington Metro. Area Transit Auth., 764 F. Supp. 1568, 1571 (D.D.C. 1991) (quoting Memorandum of February 5, 1988, at 19). Plaintiffs argue, however, that the Washington Metropolitan Area Transit Authority ("WMATA") is liable because its train operator, Keister Dixon, had the "last clear chance" to avoid Devora's death.

 An Order filed on January 27, 1988 granted defendant's first motion for summary judgment. A Memorandum filed on February 5, 1988 stated the reasons for that Order. A panel of the Court of Appeals reversed and remanded, concluding that (1) conflicting evidence precluded summary judgment on the issue of whether defendant had the "last clear chance" to avoid the injury; and (2) on remand, the District Court should consider whether "the results of the drug tests [given to Dixon after the accident] are probative on the issue of whether [he] behaved wantonly or merely negligently, and if so, whether that relevance is not substantially outweighed by the danger of unfair prejudice." Johnson v. Washington Metro. Area Transit Auth., 280 U.S. App. D.C. 53, 883 F.2d 125, 130 (D.C. Cir. 1989), cert. denied, 494 U.S. 1027, 108 L. Ed. 2d 610, 110 S. Ct. 1473 (1990).

 Defendant's motion for summary judgment was supported by evidence that "all the eyewitnesses testified that the train was from 4 to 20 feet away from her. No witnesses placed the train farther than 20 feet from decedent." Memorandum of February 5, 1988, at 12. Included in that evidence was an affidavit by Jo Ann Mary Funderburk, a WMATA employee, who was on the platform when decedent jumped. Funderburk's affidavit stated that "at the time Devora Johnson jumped, she was approximately four (4) feet from the front of the train." Funderburk Aff. P 5. There was no dispute that if the train had been anywhere between 4 and 20 feet away from decedent at the time she jumped, no train operator could have stopped the train before it struck her.

 In addition to the testimony about distance, however, two witnesses had testified as to the amount of time between decedent's jump from the platform and the train striking her: one, Ronald Thompson, estimated that 5 to 15 seconds elapsed; another, Ricardo Louis Moore, estimated the interval to be approximately 10 seconds. Plaintiffs' expert witness testified that a reasonably prudent train operator should have been able to stop the train in 10 seconds.

 Yet, both Thompson and Moore had given distance estimates that flatly contradicted these time estimates. Moore testified that decedent was only 10-12 feet from the front of the train when she jumped from the platform, and Thompson testified that decedent was no more than 20 feet from the front of the train. Moreover, both Moore and Thompson said that there was not enough time to stop the train before it struck decedent, and Thompson "acknowledged that his estimates of time were. . . less reliable because of the way in which time seems to 'slow[] down' when an accident is witnessed." Memorandum of February 5, 1988, at 14. Nevertheless, the Court of Appeals concluded that when viewed "from the point of view most favorable to the Johnsons, [this testimony] supported the conclusion that the train operator had enough time to stop the train without harming their daughter," and thus reversed the granting of summary judgment. Johnson, 883 F.2d at 129.

 Pursuant to the remand order and the Court of Appeals' suggestions, a Memorandum and Order dated May 22, 1991 denied defendant's second motion for summary judgment, ruling that genuine issues of material fact remained on the "last clear chance" issue and on whether Dixon's conduct proximately caused the accident. Johnson v. Washington Metro, Area Transit Auth., 764 F. Supp. 1568, 1583 (D.D.C. 1991). By denying defendant's motion for summary judgment, the Order followed the Court of Appeals' decision and necessarily decided that the "last clear chance" doctrine did not require decedent's initial position of peril to be caused by the negligence of both plaintiffs' decedent and defendant.

 Nine days later, on May 31, 1991, a different panel of the Court of Appeals decided Andrews v. Wilkins, 290 U.S. App. D.C. 95, 934 F.2d 1267 (D.C. Cir. 1991). Andrews stated explicitly that the first element of the "last clear chance" doctrine is "that plaintiff was in a position of danger caused by negligence of both plaintiff and defendant." Id. at 1272 (quoting Queen v. Washington Metro, Area Transit Auth., 268 U.S. App. D.C. 480, 842 F.2d 476, 481 (D.C. Cir. 1988) (in turn quoting Washington Metro, Area Transit Auth. v. Jones, 443 A.2d 45, 51 (D.C. 1982))). Andrews did not cite Johnson.

 Confronted with this apparent conflict, defendant filed a motion for a certificate that would authorize a petition for leave to file an interlocutory appeal. Based on the possibility of an intra-circuit split between Johnson, 280 U.S. App. D.C. 53, 883 F.2d 125 (D.C. Cir. 1989) and Andrews, 290 U.S. App. D.C. 95, 934 F.2d 1267 (D.C. Cir. 1991) on the issue of whether the "last clear chance" doctrine required plaintiffs to show that decedent's initial position of peril was caused by the negligence of both plaintiffs' decedent and defendant, a Memorandum and Order dated September 10, 1991 granted defendant's motion for a certificate.

 With this certificate, defendant petitioned the Court of Appeals for leave to file an interlocutory appeal. A panel of the Court of Appeals denied the petition. Despite the fact that the May 22, 1991 Memorandum and Order necessarily followed Johnson and decided that the "last clear chance" doctrine did not require decedent's initial position of peril to have been caused by the negligence of both plaintiffs' decedent and defendant, the Court of Appeals concluded: "we cannot address this matter absent a district court order resolving the [certified] questions. . . . Should the district court enter a proper order, this court may then consider the merits of this matter." Johnson v. Washington Metro, Area Transit Auth., No. 91-8035, Order (D.C. Cir. Nov. 4, 1991) (citing Ray v. American Nat'l Red Cross, 287 U.S. App. D.C. 284, 921 F.2d 324, 325-26 (D.C. Cir. 1990) (per curiam)). *fn1"

 A subsequent Memorandum dated December 20, 1991 spelled out more fully the grounds for the denial of defendant's summary judgment motion, noting that "the Johnson opinion correctly interpreted the District of Columbia precedents" and in any case, that a district court is "bound by the law of the case as stated by the Johnson panel unless and until the entire Court of Appeals had at least informally approved a departure from that mandate." Johnson v. Washington Metro, Area Transit Auth., 790 F. Supp. 1174, 1176-77 (D.D.C. 1991) (citing Irons v. Diamond, 216 U.S. App. D.C. 107, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981)). The accompanying Order' re-granted defendant's motion for certification. Johnson v. Washington Metro. Area Transit Auth., 790 F. Supp. 1174 (D.D.C. 1991).

 The defendant petitioned again for leave to file an interlocutory appeal. A different panel of the U.S. Court of Appeals denied that petition. Johnson v. Washington Metro, Area Transit Auth., No. 91-8039, Order (D.C. Cir. Feb. 24, 1992). In its entirety, the Order stated:

 
Upon consideration of the petition for leave to file an interlocutory appeal, the answer thereto and the reply, it is
 
ORDERED that the petition for leave to file an interlocutory appeal be denied. Concerning the application of the last clear chance doctrine, the law of the case governs here. See Johnson v. Washington Metro, Area Transit Authority, 280 U.S. App. D.C. 53, 883 F.2d 125 (D.C. Cir. 1989).

 Two and a half months later, on April 9, 1992, the full Court of Appeals denied WMATA's suggestion for a rehearing en banc. On the same day, the panel that denied the petition for leave to file an interlocutory appeal amended its February 24, 1992 Order by deleting "all text after the word 'denied.' in the ordering paragraph." Because the panel "denied permission for an interlocutory appeal, the panel had no authority to instruct the district court concerning further proceedings in this case." Johnson v. Washington Metro. Area Transit Auth., No. 91-8039, Order (D.C. Cir. Apr. 9, 1992). *fn2"


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